Dave Krieger

Oil and gas drilling pits Colorado residents against lawmakers

By Mark JaffeThe Denver Post

Posted:
06/16/2013 12:01:00 AM MDT

Updated:
06/16/2013 07:51:11 AM MDT

Claudia Naeseth, of Boulder, at center, and Emily Miller, also of Boulder, at right, raise their hands in the air with others supporting an anti-fracking speaker during a City Council meeting on oil and gas drilling earlier this month at the Boulder County Municipal building in Boulder. (Jeremy Papasso, Daily Camera)

The clash between homes and drill rigs — already being fought in the courts and the legislature — is dominating meetings of county commissions and city councils across the Front Range.

Pressed between the concerns of residents about their safety and property values and the limits on local control imposed by the state, elected officials are struggling to cope with the prospects of drilling.

"As public officials, we have the power to keep all industrial activities away from residential areas — except for drilling," said Fort Collins City Councilman Gerry Horak. "It's frustrating."

In response, local governments are employing a variety of stratagems.

Arapahoe County is using negotiated agreements with operators to add controls and safeguards.

In Elbert and Boulder counties, draft regulations — focused on land-use controls — are up for review this month.

Meanwhile, the cities of Boulder and Fort Collins have adopted drilling moratoriums.

"There's been a public groundswell on the issue," said Suzanne Jones, a Boulder council member. "People are concerned about what is happening in their backyards."

April Beach, a founder of the anti-drilling group Erie Rising, can give an exact measure to the problem from the back window of her Erie home.

"I have a BTEX burner, two condensate tanks, two separator tanks, a produced-water tank and five wells 234 feet from my home," the 37-year-old mother of three said.

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"It just shouldn't be there," Beach said. "I am not an expert, but I've become an expert on living next to a well."

Oil and gas drilling, however, isn't like other industrial activities, say state officials and industry representatives.

Split estates

Operators drill where there are deposits of oil and gas and where they have bought the mineral rights, which may have been severed from the surface ownership years ago, creating a split estate.

"There are property rights on both sides," said Douglas Flanders, policy director for the Colorado Oil and Gas Association, a trade group.

And decisions on where and how wells are drilled can be made, state officials insist, only by the Colorado Oil and Gas Conservation Commission.

"We believe that uniform regulations are important for the state, and we have the expertise to set those regulations," said Matt Lepore, director of the oil and gas commission.

When the city of Longmont adopted rules that included several operating restrictions, including a ban on drilling in residential areas, the state last July sued the city.

And when Longmont voters passed a ballot initiative in November banning a key oil and gas production technique called hydrofracturing, or fracking, the oil and gas association sued the city, as well.

The suits, which are pending in Boulder District Court, have had a marked impact on the approach of other local governments.

Only one passed — a spill-reporting bill — as they encountered opposition from the industry, Republican legislators and, in some cases, Gov. John Hickenlooper's administration, which said proposals were unworkable.

That leaves cities and counties to their own devices.

"Our goal is to use the county's land-use authority, to adopt the most protective rules recognizing the role of the state ... to push the line but not go over," said Kim Sanchez, Boulder County planning manager.

Elbert County commissioners are set to vote June 24 on oil and gas rules that provide some oversight and performance standards.

"It took two years to develop, and I think we've balanced both sides," said Kurt Schlegel, a county commissioner. "But exceeding the state regulations is a nonstarter."

An "understanding"

The use of negotiated agreements — "memorandums of understanding" — between local governments and drillers has also become widespread.

Pioneered by Longmont and the town of Erie, they have become part of local drilling regulations from Fort Collins to Elbert County.

Arapahoe County decided not to adopt regulations and focus on the memorandums, or MOUs, negotiating directly with the six companies looking to operate in the county.

"We were able to negotiate for extra conditions and stricter requirements than the state's for things such as pits," said Diane Kocis, the county's oil and gas director.

In exchange, companies go through a quicker, less expensive permit process.

"We feel satisfied with the agreement," said Jim Lowry, a spokesman for ConocoPhillips, the largest operator in Arapahoe County.

"It expedites permits, and people know ConocoPhillips will be held to the highest standard," Lowry said.

Fort Collins, which has a drilling moratorium in place while it upgrades its regulations, opted for a memorandum when the sole driller operating in the city, Black Diamond LLC, threatened to sue.

"We were able include tougher emission controls than the state regs," said Fort Collins' Horak.

The agreement also bans the use of pits, requiring instead a closed-loop system to control fluids.

Critics hold fast

Those steps haven't been enough for critics.

"Basically, there is no moratorium," said Gary Wockner, state program director for the environmental group Clean Water Action. "The city showed that if you threaten to sue, they'll fold."

A new group, Citizens for a Healthy Fort Collins, is trying to get a ballot initiative for a five-year moratorium on fracking in the city. Another group, Our Broomfield, wants the same for the northern suburb.

On June 4, the Boulder City Council approved a one-year fracking moratorium before an overflow meeting, filled with drilling opponents.